The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact At all times pertinent to the issues contained herein, Respondent. ROYCE S. McCALL, was licensed by the State of Florida as a licensed practical nurse, the license initially issued on December 4, 1978 and renewed thereafter until the present. His license number is 0500981. On July 11, 1984, Respondent was employed as a licensed practical nurse with the Walton County Convalescent Center (WCCC) in DeFuniak Springs, Florida. Late that evening, at approximately 4 or 5 a.m., Respondent, as charge nurse on one of the Center's units, along with Rachiel Infinger and Corene Fondren, was about to change a bladder catheter on one of the Center's residents, a Mrs. Rourke. Before doing so, however, he discovered that Mrs. Rourke had fouled herself and he refused to do the procedure then instructing Mrs. Rourke's aides to clean her up. He then went to the room occupied by Mrs. Harper, an elderly, completely bedridden patient between 80 and 90 years old, who rarely talks and can hardly move her arms and legs. Mrs. Harper also required a bladder catheter change and Respondent, along with another nurse, was attempting to do it. Since apparently Mrs. Harper was resisting somewhat, Respondent asked Ms. Infinger to help. During the course of the procedure, Mrs. Harper brought her hand down into the area where Respondent was working in an attempt to stop him. It was obvious that the procedure was somewhat painful to her and in the opinion of Ms. Infinger, Respondent was being less than gentle. When Mrs. Harper brought her hand down, Respondent grabbed it and moved it out of the way telling her at the time to, "Move your damned hand." This comment was heard by both Ms. Infinger and Ms. Fondren. When Respondent moved Mrs. Harper's hand, it collided with the bed rail which broke the skin causing it to bleed. Ms. Infinger noticed this and mentioned it to Respondent. He said he would take care of it and Ms. Infinger went some place else to do something. When she came back some 30 to 45 minutes later, she found that Respondent had still not dressed the skin break on Mrs. Harper's hand. Ms. Infinger thinks Respondent was too rough with Mrs. Harper. She believes it was not necessary for him to throw the elderly woman's hand off as he did. There were two aides present who could have, had they been asked, moved the hand and held it out of the way. There is some divergence in the testimony of Ms. Infinger and Ms. Fondren as to whether Respondent threw Mrs. Harper's hand or pushed it with the former contending it was a throw and the latter contending it was merely a push. Even Ms. Fondren, however, who believes this rough action was a reflex action by Respondent who had been in a bad mood all evening, agrees that since someone was there to help him, he should have asked for help rather than reacting on his own. If either witness is to be believed, however, Respondent acted unprofessionally. On the other hand, however, Ms. Stubbs, Ms. Blocker, and Ms. Fields, all of whom had worked with Respondent for several months, knew him from their repeated observations of him at work never to be abusive or rough with his patients. He is generally very kind to his patients, taking the time to explain what he is doing and exhibiting patience and understanding. His patience is somewhat less with the aides who in his opinion, do not do what they should on duty. Mrs. Harper has had several other skin tears both before and after the one in issue here. She is an old woman who bruises easily and whose skin can be broken easily. While not a difficult patient, she is somewhat confused and tends to try to interfere at times with the ministrations of those trying to help her and her hands often get in the way. Here, it is obvious that Respondent was in a bad mood late at night when he went to treat Mrs. Harper. He had just come from another patient who had not been properly cared for by the aides responsible for her and he was clearly annoyed. No doubt Mrs. Harper, not through spite or even consciously, attempted to stop him from doing what was no doubt a painful procedure and he reacted unprofessionally. This is not to say he consciously intended to harm her, but his reaction was less than it should have been in this situation. When Ms. Infinger came back and found that Respondent had not tended to Mrs. Harpers wound, she immediately reported this fact to Barbara Jean Miller, a licensed practical nurse working on another unit that evening who quickly treated and dressed the skin tear. When she left duty the next morning, she reported what she had seen and done and what Ms. Infinger had told her to the Assistant Director of Nursing who she saw outside in the parking lot. This lady reported it to the Director of Nursing, Mrs. Harwell, who conducted her own investigation. Mrs. Harwell interviewed Respondent who after first denying that the incident had taken place, admitted that he did yank Mrs. Harper's arm but stated he did not know it had hit the bed rail. He also initially denied knowing there was an injury but then admitted he had been told there was and that he had said he would fix it. He admitted that he was upset that evening. In the catheter procedure that Respondent was accomplishing, it is never appropriate to handle a patient so forcefully that it results in an injury even though it may be necessary to restrain or move the patient in some fashion. In Mrs. Harwell's opinion, Respondent's handling of Mrs. Harper in this instance was below minimum standards for the nursing profession. After talking with all the witnesses and securing pictures of the injury, based on her investigation and her discussions with Respondent, she terminated his employment with WCCC that day not only because in this instance his performance was below standards and unprofessional but also because this was the second incident of substandard performance on his record. She had previously chastised him for speaking improperly to or about another patient several weeks previously. Consequently, it is clear that Respondent moved Mrs. Harper's hand in such a manner that resulted in injury to her which is unprofessional conduct on his part compounded by his failure to return to treat the wound once he was made aware of it.
The Issue Whether petitioner has good cause, within the meaning of Rule 10D- 29.128(6), Florida Administrative Code, to revoke respondent's superior rating, for the reasons alleged either in Ms. Cheren's letter or in the statement of deficiencies?
Findings Of Fact Respondent holds a license to operate a 120-bed (T. 186) nursing home at 6535 Chester Avenue in Jacksonville, and does so under the name of Taylor Care Center (TCC). Petitioner Department of Health and Rehabilitative Services (HRS), which issued the license, later gave TCC a superior rating, the rating it had in March of 1988. On March 28, 1988, a Monday, Joanna T. Warfel, R.N., Edward Melvin and Richard Gerard undertook an annual "combined Medicare/Medicaid licensure survey" (T. 39) at TCC on behalf of HRS' Office of Licensure and Certification. The surveyors produced a statement of deficiencies on Form HCFA-2567 (10-84), the same form on which TCC responded with its plan of correction. HRS' Exhibit No. 1. If TCC, "a community-based nursing facility . . . [with] probably . . . 80 percent or more . . . Medicaid residents," (T. 186) loses the superior rating and receives instead only a standard rating for the period July 1, 1988 to June 30, 1989, TCC "is projected . . . [to sustain] a loss of at least $50,000 in revenue." Pre-hearing Stipulation. Infection Control TCC "had a policy and procedure manual for infection control," (Dep. 20) with which HRS does not find fault. In practice, if a floor nurse suspects an infection, she tells the charge nurse, who asks a doctor to order laboratory analysis of a culture. (T. II. 38) The laboratory furnishes the physician, the floor and TCC's infection control nurse copies of its reports, which form the basis for a log the Infection control nurse keeps. In addition, TCC's Ms. Jarrett took "environmental" samples and sent them for cultures sporadically, although no law or rule requires this, in terms. In part, the HRS team's statement of deficiencies alleged the following: INFECTION CONTROL NH-445: The condition is out of compliance because there was no system in operation to prevent the spread of infections. Ref: 405.1135, 10D-29.123 Class III 4/23/88 NH-452: Infection Control Standards not met. Ref: 405.1135(b) Class III 5/31/88 F-339/122 NH-454, 458, 116, 99: Observation revealed the following: Five residents with draining wounds not on any type of Isolation precautions. Drainage from a supra pubic catheter insertion site without a dressing. 5-7 residents with Staph Aureus eye Infections not on any type of isolation precautions. Dressings from at least 3 draining wounds were removed without gloves by the facility's nurse. One dressing to a draining wound was applied without gloves. Nurse placing gloved hand into medication jar after being in contact with infected wound. Whirlpool cleaned only with Betadine between residents. Resident with stage 2 decubiti on both feet, one of which was draining purulent material, placing both feet in the whirlpool at the same time. Pictures of a stasis ulcer healing well in August 1987, currently infected with a heavy growth of pseudomonas and much larger in size. When isolation precautions were posted, there were no isolation bags for linen and trash and no gloves left available in the room. Review of documentation revealed: Residents with positive cultures for known pathogans such as staph aureus and pseudomonas were not on isolation precautions. All draining wounds had not been cultured. All positive cultures and wounds with purulent drainage were not included in the infection log. The written infection report by nursing was prepared quarterly rather than monthly as required by state regulations. Environmental cultures collected 11/24/87 revealed "unsatisfactory" results on 5 of 5 sources cultured i.e., Pseudomonas from the whirlpool tub and water fountain. The quarterly infection control meeting minutes did not contain any plan of correction or any mention of the environmental culture results. There were no environmental culture reports since 11/24/87. Of the 39 infections recorded in the last 3 months 100% were nosocomial. There was no documented evidence of isolation being instituted for the last 12 months. Ref: 10D-29.123(3)(b), 10D-29.123(3)(f) 10D-29.108(5)(b), 10D-29.108(3)(e) 405.1135(b) Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-342/343 NH-490: Infection Control/Disaster Preparedness Standards not met. Ref: 405.1135(d), 442.327 Class III F-345 NH 493: Observation revealed that linen, contaminated with known pathogens, specifically, Pseudomonas was removed from the resident's roe without gloves and deposited with the regular laundry. Observation further revealed that laundry personnel were handling soiled linen without gloves on the first day of the survey. Ref: 405.1135, 442.327, 10D-29.124(2)(b)1 Class III 5/31/88 * * * INFECTION CONTROL/DISASTER PREPAREDNESS F-345 NH-453: Infection control committee has not approved policies and procedures for the laundry operation. Ref: 405.1135(d), 10D-29.124(2)(b) Class III 5/31/88 The "NH" references in the statement of deficiencies are set out in Part B of the nursing home licensure survey report received as HRS' Exhibit 2, and include the following: XIII. INFECTION CONTROL. 10D-29.123. The nursing facility establishes an infection control committee, appointed by the Administrator, of representative professional staff with responsibility for overall infection control in the facility. Necessary staff are provided to maintain a sanitary and comfortable environment and to help prevent the development and transmission of infection. (b) STANDARD: Infection control committee policies and procedures. The policies and procedures developed by the committee include, at a minimum, policies and procedures governing the following: NH454 Monitoring of the methods of maintaining sanitary conditions no less often than quarterly. 10D-29.123(3)(b) * * * NH458 Infection control measures, which include, at a minimum, the following: Isolation procedures for residents in communicable stage of disease. Specifics of nursing care for residents with infection. NH116 Nursing care includes control of occurrence of infection through the use of aseptic techniques, surveillance of personnel and environmental conditions, identification of high-risk, infection prone residents, health education, counseling, and practicing health promoting habits. 10D-29.108(5)(b) * * * NH99 The DON ensures that the facility's resident care policies and procedures and the policies and procedures developed by the pharmaceutical services committee and the infection control committee, which relate to nursing services are implemented. (e) STANDARD: Linen and laundry * * * NH493 The responsible person ensures that written policies and procedures for linen and laundry services, including methods of collection, storage, transportation are developed, implemented and maintained in conjunction with the policies and procedures developed by the infection control committee. 10D-29.124(2)(b)1 The rule provisions on which HRS relies are set out in the conclusions of law. Decubiti, called pressure sores or bed sores after their wonted etiology, advance through four stages, if not checked. In stage one, the skin is intact, but "remains red after approximately 30 minutes of pressure relief." (T. II. 117-8) In stage two, the skin is "open," and the sore moist, but superficial and devoid of infection. Muscle and necrotic tissue may be seen in stage three, when open lesions are deeper. Stage four lesions go to the bone. Clear serous drainage from a stage two decubitus facilitates healing. While purulent drainage from more advanced lesions may also be of some benefit, this yellowish or greenish fluid contains pathogenic organisms which pose the danger that infection will spread. (T. I. 69-70) Stasis ulcers, attributable to poor venous circulation, and eyes in which antibiotic resistant staphylococci aurei have established themselves are other sources of infection in nursing homes. In the course of the survey, Ms. Warfel observed three decubiti on the feet of the resident who slept in bed 101-A at TCC, including a stage two decubitus, TCC's Exhibit No. 2, "with small amount of drainage, half-inch in diameter on the left inner ankle." (Dep. 22) Any discoloration of the drainage (Dep. 25, 31) was apparently due to medication. (T. 11, 33) She saw a sore of similar size "with a slight amount of drainage," (Dep. 23) on the outside of the left foot of the man who slept In bed 210-B, who also had an undressed suprapubic catheter with a "strand of mucous . . . between the catheter tubing and the skin." (Dep. 25) The resident who slept in bed 301-B "had a stage two on the left hip, one inch in diameter, and had a positive culture for staph in March of '88." (Dep. 23) The woman who slept in bed 316-B had both "a draining area on her left thigh . . .from a previous hip pin" (Dep. 23) and a "small stage two decubitus on the coccyx." Id. The drainage from the surgical incision was clear, and, when analyzed after the survey (in response to Ms. Warfel's characterization) proved noninfectious, just as the resident's physician had earlier advised TCC. (T. I. 44-45) One nurse placed a gloved hand into a medication jar after contact with a stasis ulcer the woman in Room 115 had. (Dep. 29) Room 115 is private. What became of the medication thereafter the record does not reveal. The woman's ulcer was heavily infected with pseudomonas, although it had been reported to be healing well in August of 1987. She told Ms. Warfel it had gotten [re]infected from the whirlpool." (Dep. 31) Ms. Warfel saw the resident who slept in bed 101-A with both feet in the whirlpool, then saw a staff person dry both feet with the same towel. (Dep. 31) On March 24, 1988, her physician had ordered "sterile WP to [both] feet." TCC's Exhibit No. 2. The physical therapist regularly disinfected the whirlpool with Wescodyne. (T. II. 34) As far as the evidence revealed, she did so after each use. On her initial visit, Ms. Warfel did not see precautions posted for Room 210 "but on the fourth day . . . went back and checked, and that was on the door then." (Dep. 22) The man who slept in bed 210-B had been placed on secretion precautions the week before the survey, when a culture revealed that he suffered from an infection of methicillin-resistant staphylococcus aureus. Perhaps because the sign posted on his door was not the customary green, Ms. Warfel overlooked it originally. In rooms in which isolation procedures are in effect, soiled linen is placed in "a double red bag or a water soluble bag." (T. II. 30) Water soluble bags go "directly into the hamper . . . [while the contents of each] double red bag . . . [go] into a separate laundry from the regular linen." (T. II. 30) Gloves at the nurse's desk were available to the nursing staff. (Dep. 28) Although the "director of nurses wore gloves part of the time when she was handling dressings . . . [t]he nurse who did the treatment on the pseudomonas infection wore gloves while she was doing the dressing only." (Dep. 27) TCC terminated that nurse's employment. (T. II. 32) Because Jackie Williams, TCC's infection control nurse who began at TCC not long before the survey, listed all urinary tract infections as nosocomial, the infection control log grossly overstated the number of nosocomial infections occurring at TCC during the three months before the survey took place. HRS' Exhibit No. 4. If evaluated against accepted criteria, Hearing Officer's Exhibit No. 1, the actual number was on the order of six. Of these, four were urinary tract infections in which only pathogens present at admission were implicated. The infection control log was updated continuously, as information was received, but monthly reports as such were not prepared. Dr. Tremble, who attends the woman who sleeps in Room 115, "does his very own cultures himself." (T. II. 38) No laboratory or other report of the results of cultures done for this resident reached TCC's infection control nurse nor were any deflected in the infection control log. As far as the record reveals, environmental cultures were denominated "unsatisfactory if there was any bacteria count," (Dep. 39) however small. The evidence did not establish that the environmental culture results reflected conditions about which TCC should have done anything it failed to do. Guidelines The CDC Guideline for Isolation Precautions in Hospitals published in 1983, excerpts from which were received as HRS' Exhibit No. 6, say the following about gowns, gloves, bagging of articles, linen and dressings: Gowns In general, gowns are recommended to prevent soiling of clothing when taking care of patients. Gowns are not necessary for most patient care because such soiling is not likely. However, gowns are indicated when taking care of patients on isolation precautions if clothes are likely to be soiled with infective secretions or excretions, for example, when changing the bed of an incontinent patient who has infectious diarrhea or when holding an infant who has a respiratory infection. Furthermore, gowns are indicated, even when gross soiling is not anticipated, for all persons entering the room of patients who have infections that if transmitted in hospitals frequently cause serious illness, for example, varicella (chickenpox) or disseminated zoster. When gowns are indicated, they should be worn only once and then discarded in an appropriate receptacle. Clean, freshly laundered or disposable gowns may be worn in most circumstances. In some instances, as with extensive burns or extensive wounds, sterile gowns may be worn when changing dressings. Gloves In general, there are 3 distinct reasons for wearing gloves. First, gloves reduce the possibility that personnel will become infected with microorganisms that are infecting patients; for example, gloves should prevent personnel from developing herpetic whitlow after giving oral care or suctioning a patient with oral herpes simplex infections. Second, gloves reduce the likelihood that personnel will transmit their own endogenous microbial flora to patients; for example, sterile gloves are used for this reason when personnel perform operations or touch open surgical wounds. Third, gloves reduce the possibility that personnel will become transiently colonized with microorganisms that can be transmitted to other patients. Under most conditions, such transient colonization can be eliminated by handwashing. Thus, in hospitals where handwashing is performed carefully and appropriately by all personnel, gloves are theoretically not necessary to prevent transient colonization of personnel and subsequent transmission by them to others. However, since handwashing practices are thought to be inadequate in most hospitals, gloves appear to be a practical means of preventing transient hand colonization and spread of some infections. Therefore, for many diseases or conditions listed in this guideline, wearing gloves is indicated for touching the excretions, secretions, blood, or body fluids that are listed as infective material. Gloves may not be needed if "no touch" technique (not touching infective materials with hands) can be used. When gloves are indicated, disposable single-use gloves (sterile or nonsterile, depending on the purpose for use) should be worn. Used gloves should be discarded into an appropriate receptacle. After direct contact with a patient's excretions or secretions, when taking care of that patient, gloves should be changed if care of hat patient has not been completed. Bagging of Articles Used articles may need to be enclosed in an impervious bag before they are removed from the room or cubicle of a patient on isolation precautions. Such bagging is intended to prevent inadvertent exposures of personnel to articles contaminated with infective material and prevent contamination of the environment. Most articles do not need to be bagged unless they are contaminated (or likely to be contaminated) with infective material. (See the Tables, which contain an alphabetical listing of diseases for identification of the infective material for each disease.) A single bag is probably adequate if the bag is impervious and sturdy (not easily penetrated) and if the article can be placed in the bag without contaminating the outside of the bag; otherwise, double bagging should be used. Bags should be labeled or be a particular color designated solely for contaminated articles or infectious wastes. * * * Linen In general, soiled linen should be handled as little as possible and with a minimum of agitation to prevent gross microbial contamination of the air and of persons handling the linen. Soiled linen from patients on Isolation precautions should be put in a laundry bag in the patient's room or cubicle. The bag should be labeled or be a particular color (for example, red) specifically designated for such linen so that whoever receives the linen knows to take the necessary precautions. Linens will require less handling if the bag is hot-water-soluble because such bags can be placed directly into the washing machine; however, a hot-water soluble bag may need to be double-bagged because they are generally easily punctured or torn or may dissolve when wet. Linen from patients on isolation precautions should not be sorted before being laundered. If mattresses and pillows are covered with impervious plastic, they can be cleaned by wiping with a disinfectant-detergent. (See Guideline for Hospital Environmental Control: Laundry Services.) * * * Dressings and Tissues All dressings, paper tissues, and other disposable items soiled with infective material (respiratory, oral, or wound secretions) should be bagged and labeled and disposed of in accordance with the hospital's policy for disposal of infectious wastes. Local regulations may call for incineration or disposal in an authorized sanitary landfill without being opened. (See Guideline for Hospital Environmental Control: Housekeeping Services and Waste Disposal.) The same document also specifies "secretion precautions" and "bodily fluid precautions" for certain hospital patients: Drainage/Secretion Precautions Drainage/Secretion Precautions are designed to prevent infections that are transmitted by direct or indirect contact with purulent material or drainage from an infected body site. . . . Infectious diseases included in this category are those that result in the production of infective purulent material, drainage, or secretions, unless the disease is included in another isolation category that requires more rigorous precautions. For example, minor or limited skin, wound, or burn infections are included in this category, but major skin, wound, or burn infections are included in Contact Isolation. . . . Specifications for Drainage/Secretion Precautions Private room is not indicated. Masks are not indicated. Gowns are indicated if soiling is likely. Gloves are indicated for touching infective material. Hands must be washed after touching the patient or potentially contaminated articles and before taking care of another patient. Articles contaminated with infective material should be discarded or bagged and labeled before being sent for decontamination and reprocessing. * * * Blood/Body Fluid Precautions Blood/Body Fluid Precautions are designed to prevent infections that are transmitted by direct or indirect contact with infective blood or body fluids, unless the disease is included in another isolation category that requires more rigorous precautions, for example, Strict Isolation. For some diseases included in this category, such as malaria, only blood is infective; for other diseases, such as hepatitis B (including antigen carriers), blood and body fluids (saliva, semen, etc.) are infective. Specifications for Blood/Body Fluid Precautions Private room is indicated if patient hygiene is poor. A patient with poor hygiene does not wash hands after touching infective material, contaminates the environment with infective material, or shares contaminated articles with other patients. In general, patients infected with the same organism may share a room. Masks are not indicated. Gowns are indicated if soiling of clothing with blood or body fluids is likely. Gloves are indicated for touching blood or body fluids. Hands must be washed immediately if they are potentially contaminated with blood or body fluids and before taking care of another patient. Articles contaminated with blood or body fluids should be discarded or bagged and labeled before being sent for decontamination and reprocessing. Care should be taken to avoid needle-stick injuries. Used needles should not be recapped or bent; they should be placed in a prominently labeled, puncture-resistant container designated specifically for such disposal. Blood spills should be cleaned up promptly with a solution of 5.25% sodium hypochlorite diluted 1:10 with water. TCC has incorporated these provisions in its infection control policy and procedure manual. Joint Exhibit No. 1. More recently, the Centers for Disease Control have prescribed "universal precautions," recommending that hospital personnel proceed as if every patient had acquired immune deficiency syndrome. (T. I. 75-6) No Isolation The TCC resident who slept in bed 306-A had an eye infection which TCC staff began treating with ophthalmic ointment (Gentamycin) on February 3, 1988. "Resolved" by the time of the survey, this infection was caused by staphylococcus aureus, which was methicillin resistant (T. II. 73, 111) and required isolation (secretion precaution) procedures (T. II. 46, 7) which were never instituted. (T. II. 42) "[T]hey should have been wearing gloves. And the linen that they were using should have been placed in isolation bags before washing, labeled and identified". (Dep. 26)(T. I. 70, 73-4) Except for the resident who slept in bed 210-B, TCC had placed nobody in isolation for the six months preceding the survey. (T. II. 42) Other Red Eyes The TCC resident who slept in bed 112A had redness of the eye, from which Ms. Warfel concluded "that it was conjunctivitis and the patient should have been isolated". The patient to whom bed 112A was assigned had no drainage. At the time of the survey, the TCC resident who slept in bed 203B was already receiving medication for an eye infection. A laboratory report dated March 15, 1988, identified the organism as "staph epi," normal skin flora, to be distinguished from the malevolent staphylococcus aureus. The woman who slept in bed 407B also "had light growth of staph epi . . . was on an ointment for seven days and didn't require isolation". (T. II. 47) The women who slept in beds 305A and 316B had red eyes, as well, attributable, it turned out, to glaucoma, and not to staphylococcus aureus. Resident Care Plans and Activities With respect to patient care management and residents' activities, the HRS team alleged, in its statement of deficiencies: F-237/238 NH-136: Patient Care Management Standards not met. Ref: 405.1124(d), 442.341 Class III 5/31/88 F-239/240 NH-138: Observation of patient care and record review revealed that all resident's problems/needs, i.e., decubiti, infections, rehab, etc. were not being addressed in the written plan of care or delivery of services. Goals were not measurable and interventions were limited and inadequate. The evaluations did not address the effectiveness of the interventions or institute appropriate changes in either the goals or approaches. Social Services and Activities in the care plans, also did not have measurable goals and specific approaches to meet the residents identified needs. Also the disciplines did not evaluate the effectiveness of their approaches. Ref: 405.1124, 442.341, 10D-29.109(2) Class III 5/31/88 * * * F-234 NH-324: The facility has two programs implemented for its residents: (1) stroke group, (2) Adventure Group for Alzheimers residents. Surveyor found that these groups had about 20 residents each in the groups. However, surveyor found from interview, observation, and documentation could not ascertain that the residents were receiving benefits from these programs or that these programs were meeting their identified needs. Ref: 442.345, 10D-22.116 Class III 5/31/88 The statement of deficiencies also sets out pertinent standards: STANDARD: Resident care plans NH138 The DON serves as coordinator of an interdisciplinary team responsible for the development, implementation, maintenance and evaluation of each resident's plan of care. Each interdisciplinary team member involved in the resident's care provides input into the development, implementation, maintenance, and evaluation of the resident's plan of care. 10D-29.109(2) NH324 The activities program provides diversified independent and group activities for each resident, including those confined to bed, commensurate with each resident's needs, abilities and interests. The rule provisions on which HRS relies are set out in the conclusions of law. TCC provides two programs of group activities as part of the care it affords residents. In specifying which group activities are to be available to a particular resident, the resident's care plan typically listed either the "Stroke Club" or the "Alzheimers Adventure Group," without further elaboration. Only from other documents was HRS' Mr. Melvin able to discern the goals and objectives of the two programs. (T. 117, 119) In reviewing six charts in particular, Mr. Melvin perceived flaws in residents' care plans, plans that may be summarized, as follows: Patient Diagnosis/Problems Goals Approaches No. 361 Alzheimer's disease, Safe and free ADV. group unaware, disoriented unaware of needs and from harm needs will be 24 hour su- pervision of care wants met learn her signals and needs No. 348 Alzheimer's disease, unaware, disoriented will be kept aware of day, time, & place ADV. program No. 368 CVA (new admit) monitor needs get pt. to activities No. 365 Alzheimer's disease, free from ADV. program bladder tumors, con- harm and injury fused, disoriented, wanders ADV. program potential for de- & take to creased social stimula- parties tion & mental status No. 328 OBS, osteoarthritis, will attend encourage periods of confusion and depression memory loss and has good past recall activities, be- come acquainted with others; not to be em- barrassed when she forgets to parti- cipate in activities introduce to other residents; do not argue or dwell on things No. 011 arthritis & hyperten- sion, altered mental status, unaware of needs provide needs keep free from harm and in- jury 24 hour supervi- sion & adv prog. For the most part these plans lack specificity and individualization. They do not specify the severity of Alzheimer patients' disease. They are vague enough that it would be, in many instances, difficult to say whether they had been complied with. Nor was Mr. Melvin impressed with the 20-member Alzheimers Adventure Group in action. When he observed, a woman lay on the floor without participating in the group's activities. But the family of the recumbent resident, well aware of her proclivity to stretch out, agreed with staff that letting her lie was the more sensible and humane course. The other patients sat in rows "for hours in the room . . . [without] any programming . . . except the break at lunchtime". (T 120) Arts and crafts were not available to them.
Recommendation It is, accordingly, RECOMMENDED: That HRS revoke respondent's superior rating, until and unless respondent demonstrates its renewed eligibility for the same. DONE AND ENTERED this 9th day of January, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2326 Petitioner's proposed findings of fact Nos. 1, 2, 12 and 13 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 3, 4, 6, 7, 8, 9, 10, and 11, merely recite testimony. With respect to petitioner's proposed finding of fact No. 5, the infection control log was inaccurate, subparagraphs (c) and (e) are adopted; and the remaining parts of the proposed findings relate to subordinate matters. Petitioner's proposed finding of fact No. 14 has been adopted in part only. Respondent's proposed finding of fact No. 15 is a proposed conclusion of law. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 8, 10, 14, 16, 18, 23, 24 and 27 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, a new infection control nurse began work. Respondent's proposed findings of fact Nos. 6, 7, 9, 11 (as to individualization) 12, 15, 19 (including secretion precautions) 22 and 26 have been rejected as against the weight of the evidence. Respondent's proposed finding of fact No. 13 merely recites testimony. With respect to respondent's proposed finding of fact No. 17, an HRS witness did cite the patient's opinion. With respect to respondent's proposed finding of fact No. 20, the infection control log was up to date, but inaccurate. Respondent's proposed finding of fact No. 21 is a proposed conclusion of law. Respondent's proposed finding of fact No. 25 relates to subordinate matters. COPIES FURNISHED: Frederick J. Simpson, Esquire Post Office Box 2417 Jacksonville, Florida 32230-0083 R. Bruce McKibben, Jr., Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32303 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, Ann Claycomb (Claycomb), was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 39853-1. On December 24, 1987, Claycomb was employed as an agency nurse by Alpha Health Care, Inc., and was on assignment to Health South Rehabilitation, a skilled nursing and rehabilitation facility in Miami, Florida. While at the facility on that date, Claycomb worked the morning shift 7:00 a.m. to 3:30 p.m., and was assigned to the skilled nursing floor. The skilled nursing floor contained 20-25 elderly, though mostly alert patients. At the commencement of Claycomb's shift, it was her responsibility to administer medications to these patients which conformed with that prescribed by their medication administration record (MAR). Shortly after Claycomb began her rounds, Elaine Wood, the Unit Manager at Health South Rehabilitation, began to receive complaints from patients for what they perceived to be errors in the medicinal drugs administered or attempted to be administered to them by Claycomb. Upon investigation, the following medication errors were discovered. Claycomb administered what she believed to be two Tylenol tablets to patient H.B. Following administration, the patient became lethargic and her vital signs deteriorated but later returned to normal. Lethargy is not a side effect of Tylenol. Although the MAR prescribed two Slow K tablets at 9:00 a.m., and Lilbrax as needed, Claycomb recorded having administered one Slow K tablet and Atarax to patient H.R. Claycomb dispensed Atarax to patient A.J. at 9:00 a.m. when the MAR prescribed dose to be given at 1:00 p.m. Patient refused medication because given at the wrong time. In committing the foregoing medication errors Claycomb's practice fell below the minimal standards of acceptable and prevailing nursing practice in the administration of medicinal drugs. Verification of other complaints received by Ms. Wood could not be verified because, contrary to accepted and prevailing nursing practice, Claycomb did not annotate some patients' MAR upon dispensing medications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending the license of respondent, Ann Claycomb, until such time as she submits proof satisfactory to the Board of Nursing that she can practice nursing safely. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3603 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraphs 2 and 3. 5 & 6. Addressed in paragraphs 46. Addressed in paragraph 4c. Subordinate or not necessary to result reached. Not necessary to result reached. Not necessary to result reached. To the extent supported by competent proof addressed in paragraph 4. Proposed findings 11a and 11d are based on hearsay which does not supplement or explain any competent proof. 12-15. Not pertinent nor necessary to result reached. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Ann Claycomb 4175 South West 98th Avenue Miami, Florida 33165 Lawrence M. Shoot, Esquire 6011 West 16th Avenue Hialeah, Florida 33012 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what penalty should be imposed on his nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. Respondent, Cecil Harold Floyd, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued a license numbered PN 0960631. At all times material hereto, Respondent was employed as a licensed practical nurse by the North Shore Senior Adult Community in St. Petersburg, Florida. At all times material hereto, Respondent was assigned to care for Patient M.F., a patient in the skilled nursing section of the North Shore Senior Adult Community. On February 26-27, 1996, Respondent worked as the charge nurse on the 11:00 p.m. to 7:00 a.m. shift. On February 27, 1996, at approximately 6:00 a.m., Respondent wrote in the nurse's notes that Patient M.F. was lethargic and having difficulty swallowing; that the patient's bottom dentures were out; and that the patient's tongue was over to the right side. In this entry, Respondent also noted "will continue to monitor." After Respondent completed his shift on February 27, 1996, Conchita McClory, LPN, was the charge nurse in the skilled nursing facility at North Shore Senior Adult Community. At about 8:10 a.m., Nurse McClory was called by the CNA who was attempting to wake up Patient M.F. Upon Nurse McClory's entering Patient M.F.'s room, she observed that the patient was sleeping, incontinent, and restless and that the right side of the patient's face was dropping. Based on these observations, Nurse McClory believed that Patient M.F. may have suffered a stroke and she immediately called 911. Following the 911 call, Patent M.F. was taken to Saint Anthony's Hospital in Saint Petersburg, Florida. Prior to coming to this country, Conchita McClory had been trained and worked as a registered nurse in the Philippines. However, Ms. McClory is not licensed as a registered nurse in the State of Florida. Saint Anthony's Hospital's records regarding Patient M.F. indicate that the patient had a history of multiple strokes beginning in 1986. The Department’s Administrative Complaint against Respondent included the following factual allegations, all of which were alleged to have occurred on February 27, 1996: At approximately 6:00 a.m., Respondent recorded in the nurse’s notes that Patient M.F. was lethargic and having difficulty swallowing; the patient's bottom dentures were out; and the patient's tongue was over to the right side. Respondent also noted in the nurses' notes that Patient M.F. should continue to be monitored. Patient M.F.'s roommate told Respondent that she believed that M.F. had suffered a stroke because she could not swallow and her speech was slurred. At about 8:00 a.m., Patient M.F.'s roommate went to the nurses' station and requested that a certified nurse's assistant check on M.F. Patient M.F. was found paralyzed on her left side, soaked in urine and unable to speak. There was no evidence presented to support the factual allegations referenced in paragraph 9b and 9c above and included in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 6th day of October, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Allied Health - Medical Quality Assistance 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 Cecil Harold Floyd 1680 25th Avenue, North St. Petersburg, Florida 33713-4444 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
The Issue As stated in the Prehearing Stipulation filed by the parties, the "issue to be litigated is whether Petitioner is entitled to a Superior or Standard rating on its license for the period September 1, 1986 through August 31, 1987"?
Findings Of Fact The Petitioner, The Magnolias Nursing and Convalescent Center, is a 210-bed nursing home located in a four-story building in Pensacola, Florida. It is licensed as a nursing home by the State of Florida pursuant to Chapter 400, Florida Statutes. Howard Bennett and his wife have been the owners of the Petitioner since it was built in 1978. On April 28-30, 1986, and May 1-2, 1986, the Department conducted an annual Licensure and Certification survey (hereinafter referred to as the "Annual Survey") of the Petitioner's nursing home as required by Section 400.23, Florida Statutes. Based upon the Annual Survey conducted by the Department, the Department determined that the Petitioner's facility failed to meet nursing home licensure requirement numbers (NH) 100 and 102, as identified on the Department's Nursing Home Licensure Survey Report, DHRS exhibit 2. The deficiencies found by the Department and which in fact existed during the Annual Survey relating to NH 100 and 102 were as follows: The charge nurse for each shift on each of the four floors of the facility is responsible, under direction from Director of Nursing, for the total nursing activities in the facility during each tour of duty. The charge nurses are thus responsible for ensuring that nursing personnel carry out the direct nursing care needs of specific patients and assist in carrying out these nursing care needs. This responsibility is not always met in that: On the day of the survey, there were urine odors noted on the halls, rooms of fourth and third floors, indicating lack of attention by nursing. Other instances of lack of personal attention by nursing on the above mentioned floor in that: One patient required oral hygiene. Fourteen residents required fingernail care, one resident's fingernails were long, thick, and black indicating a need for attention. Two residents had redden buttocks, three residents were wet, three residents needed shaving, three residents needed hair cuts. One resident needed colostomy bag changed. One resident had a small amount of feces on backside, and was not properly cleaned around the rectum and scrotum. Several residents had on clothing that was too tight, zippers open, buttons not fasten, soil wrinkled and threads hanging around the bottom. It is also noted, that there are 116 total care, and 17 self care residents in the facility indicating a need for constant intensive nursing care to the residents. Ref. 10D-29.108(3)(d)(1) Based upon the totality of these deficiencies, it was concluded that the Petitioner failed to comply with the standard of care to be provided by the charge nurse. The deficiencies cited by the Department during the Annual Survey were classified as Class III deficiencies. The Annual Survey was conducted by Christine Denson. Ms. Denson had conducted nine to ten annual surveys of the Petitioner prior to the survey which is the subject of this proceeding. During Ms. Denson's inspection of the Petitioner's nursing home, Ms. Denson pointed out the deficiencies which are noted above to the director of nursing who accompanied Ms. Denson during her inspection. Ms. Denson normally records in some manner the identity of a resident to whom a deficiency relates; by noting the room number or bed number. Ms. Denson did not follow this procedure during the Annual Survey. Ms. Denson met with Howard Bennett, the owner of the Petitioner, at the conclusion of the Annual Survey. After Ms. Denson had explained the deficiencies she had found during her inspection, Judge Bennett stated to Ms. Denson: "I know the place is going down hill. We are letting it slide. Judge Bennett did not ask Ms. Denson for any information concerning the identity of the residents to which deficiencies related. The Petitioner had policies in effect at the time of the Annual Survey which addressed each of the deficiencies cited by the Department. Those policies were not, however, followed. Ms. Denson did not know when the residents to which the deficiencies she found related had been admitted to the Petitioner, their medical condition, how long the fingernail problems had existed or how long the residents had resided at the Petitioner. Ms. Denson did not speak to the residents about the problems she noted, review their medical or dental records or talk to any residents' physician. Finally, Ms. Denson did not remember whether any of the residents were continent or incontinent. On August 13, 1986, a letter was issued by the Department informing the Petitioner that its license rating was being converted from a superior rating to a standard rating. The August 13, 1986, letter from the Department also indicated that the deficiencies noted in the Annual Survey had been corrected based upon a July 31, 1986, follow-up inspection conducted by the Department. The Petitioner requested an administrative hearing challenging the proposed rating of its license by letter dated September 24, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assigning a standard rating on the Petitioner's license for the period September 1, 1986, through August 31, 1987. DONE and ENTERED this 19th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4182 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Accentance or Reason for Rejection 1-3, 6-7, 81 These are matters included in the Prehearing Stipulation. They are hereby accepted. 4-5 Statement of the issue in this case 8 Not supported by the weight of the evidence. Ms. Denson testified at pages 48-49 of the transcript that whether a nursing home was considered to be out of compliance depended on the totality of the deficiencies and that she considered all of the deficiencies she found at the Petitioner's facility. 9 12. 10-11 10. 12-13 7. 14 Irrelevant. 15-16, 19-20, 22-23, 25, 29-31 10. 17 Hearsay. 18, 28, 33-34, 36-37, 39, 41-43, 45 Hereby accepted. 21, 24, 26-27, 32, 48, 54-66, 71, 73-77 These proposed findings of fact are generally true. They all involve, however, possible explanations for the deficiencies found at the Petitioner's facility. In order for these proposed findings of fact to be relevant it would have to be concluded that the Department had the burden of dispelling any and all possible explanations for the deficiencies. Such a conclusion would not be reasonable in this case. The Department presented testimony that the deficiencies cited existed and that, taken as a whole, they supported a conclusion that the Petitioner was not providing minimum nursing care. This evidence was credible and sufficient to meet the Department's burden of proof and to shift the burden to the Petitioner to provide proof of any explanations for the deficiencies. 35 9. 38, 40, 49-51, 53, 82-83, 86-87 Irrelevant and/or argument. 43-44 1. 46-47, 51, 56, 66-67, 71-71 These proposed findings of fact are true. They are not relevant to this proceeding, however, because they involve situations at the Petitioner's facility which may explain the deficiencies. The Petitioner failed to prove that they actually were the cause of any of the deficiencies. 70, 78-80, 84-85 Conclusions of law. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2-3. 2 11-12. 3 4 and 6. 4 4. 5-7 Irrelevant, summary of testimony, conclusion of law. 8 9. 9 8. 10 Irrelevant. 11 8. 12 Summary of testimony and facts relating to the weight of Ms. Mayo's testimony. 13-14 Hereby accepted. 15 Argument. 16-17 Conclusions of law. 18 4. 19-20 Conclusions of law, argument and irrelevant. COPIES FURNISHED: Jonathan S. Grout, Esquire Dempsey & Goldsmith, P.A. Post Office Box 10651 Tallahassee, Florida 32302 Michael O. Mathis Staff Attorney Office of Licensure and Certification Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material hereto, Anthony Martin, Respondent, has been a licensed practical nurse with license number PN 0727851 whose last known address is 4041C N.W. 16th Street, Apartment 109, Fort Lauderdale, Florida 33313. Respondent was contacted at said address by an investigator employed by Petitioner in May, 1984 and he has not notified Petitioner of any change of address. Although notice of the final hearing was duly sent to Respondent at his last known address, he did not appear. Respondent was employed at St. John's Nursing and Rehabilitation Center as a licensed practical nurse from November 30, 1983 until March 8, 1984. During the course of his employment on January 9, 1984 Respondent received a warning notice and a one-day suspension from the Director of Nursing due to a complaint by a coworker who smelled alcohol on his breath while on duty. Respondent's supervisor also smelled alcohol on his breath on that date. Respondent was interviewed by the Director of Nursing who testified that he admitted to having a drinking problem. She referred him to an impaired nurse program for assistance with his drinking problem but he never attended the program. It is contrary to good nursing practice, and is also contrary to the employment policies and standards of St. John's Nursing and Rehabilitation Center to report for duty as a nurse after having consumed alcohol to the extent that it can be smelled on one's breath. Nancy Cox an expert in nursing education testified that such conduct was unprofessional and below minimum nursing standards since the use of alcohol impairs a nurse's ability to respond to nursing care emergencies and to exercise sound nursing judgment. Cox also testified that an indication of an alcohol problem was a belligerent and uncaring attitude in dealing with patients. Respondent's employment records contain complaints from patients about his hostile and uncaring attitude while on duty. On February 7, 1984 Respondent received a second warning notice concerning his lack of proper care to a tracheostomy patient which resulted in a medical emergency. Respondent was on the 3:00 p.m.-11:00 p.m. shift at the time. During his shift, a nurse's aide asked Respondent to assist a tracheostomy patient on two occasions. Respondent looked in on the patient but did not administer suction or any other care. On a third occasion the aide asked Respondent to care for the patient and he did not even look in on the patient. Before leaving the floor at 11:30 p.m. after her shift, the same aide again looked in on the tracheostomy patient and saw that the patient was in distress and in immediate need of care. The aide got her supervisor who found that the patient was blue. Attempts to clear the air passage with suction were unsuccessful, and the patient had to be transferred to a hospital for emergency care. The expert in nursing education, Nancy Cox, testified that Respondent's actions in dealing with this patient were unprofessional and below minimum standards. Cox explained that a tracheostomy patient cannot verbalize his need for care so extra attention must be paid to patient needs by the nurse on duty, particularly for blockages of the airway. Each occasion when Respondent simply looked in on the patient but failed to administer suction, and the one occasion when he totally ignored this patient's needs constituted unprofessional conduct, in Cox's opinion. Petitioner presented evidence of a third incident on February 25, 1984 involving a diabetic-patient and the care rendered to said patient by Respondent which resulted in a third warning notice against Respondent. The diabetic patient vomited around 7:30 p.m. and lapsed into a coma at 9:10 p.m. Respondent did not check this patient's blood sugar level after the vomiting, which he should have according to Cox, nor did he call this to his supervisor's attention. The parties were allowed to submit proposed findings of fact after the hearing pursuant to Section 120.57(1)(b)4, F.S., and a ruling on each proposed finding that was submitted has been made in this Recommended Order, either directly or indirectly, except where proposed findings have been rejected as subordinate, immaterial, unnecessary, irrelevant or unduly repetitious.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license but providing that he may apply for reinstatement if, within one (1) year from the issuance of the Final Order Respondent submits to, and successfully completes an impaired nurse program to be designated by the Department of Professional Regulation and Hoard of Nursing at his own expense. DONE and ENTERED this 24th day of June, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1985. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Anthony Martin 4041C NW 16th Street Apartment 109 Fort Lauderdale, Florida 33313 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville Florida 32202 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301
Findings Of Fact Petitioner is a nursing home facility located at 1900 Mercy Drive, Orlando, Florida. It is licensed by Respondent and certified to participate in the Medicaid Program. Prior to the rating at issue in this case, Petitioner was rated a "superior" nursing home by Respondent. The "standard" rating at issue in this case was for the period November 30, 1984 to February 28, 1986. The most recent rating for Petitioner, for the period after February 28, 1986, is "superior." Petitioner was deprived of increased Medicaid reimbursement due to its "standard" rating during the period in question. Additionally, Petitioner was deprived of the ability to hold itself out to the public as a "superior" nursing home for the period in question. The parties stipulated that Petitioner was qualified for a "superior" rating for the period in question, except for the factors considered by Robert Maryanski, former Director of the Office of Licensure and Certification, when he made the decision to give Petitioner a "standard" rating, effective November 30, 1984 until February 28, 1986. The factors considered by Maryanski which formed the basis of his decision were: a rating sheet and results of a survey conducted of Petitioner's facility on November 5 through 7, 1984, as well as follow-up visits on January 15 and February 1, 1985: a report of a complaint or surveillance visit conducted on February 1, 1985; a memo dated March 14, 1985 from Robert W. Smith, Area Supervisor of the Office of Licensure and Certification: concerns of the Long-Term Care Ombudsman Council as expressed by letter dated November 15, 1984 and concerns of Paul Snead, Jr., Respondent's District Administrator as expressed by memo dated November 26, 1984. In conducting its annual survey of Petitioner's facility, Respondent's surveyors, George Farrar and June Monaghan, identified seven Class III deficiencies which were corrected by the time follow-up visits were conducted on January 15 and February l, 1985. However, in conjunction with the February 1, 1985 follow-up visit, Respondent's surveyors also conducted an unannounced complaint or surveillance visit which identified eight additional deficiencies. No exit interview was conducted following this complaint or surveillance visit, and Petitioner was not informed of these additional deficiencies, or the fact they could affect their annual rating, until approximately a week later. Neither Farrar nor Monaghan, the surveyors who conducted the February 1 complaint or surveillance visit and who are still employed by Respondent, testified at the hearing. The only witnesses testifying at the hearing who were present during all or a portion of the February 1 visit were Charlotte Uhrig, Administrator of Petitioner's facility, Kathleen Wingard, Director of Operations for Petitioner's management company, and Linda Anderson, a licensed practical nurse employed by Petitioner. Uhrig and Anderson offered credible testimony to explain the deficiencies found during the complaint or surveillance visit, and their unrebutted testimony precludes any finding that the deficiencies reported by Farrar and Monaghan actually existed. To the contrary, based on the evidence presented, it is specifically found that during this visit on February 1, 1985: Petitioner did not violate a patient's right to privacy in treatment since only the patient's heel and back of the leg were exposed at the request of the surveyor; Petitioner took prompt action in terminating a Director of Nursing who violated its policies by allowing aides to do and chart dressings and treatments; Anderson's actions in attempting to give a patient two pills were reasonable and in accordance with proper nursing practice. The fact that the patient did not swallow the pills and the surveyor found them in a glass of water does not indicate any failure on the part of Petitioner to adhere to required nursing home procedures; The lock on a treatment cart was only broken for a couple of hours and was repaired as soon as possible. During the time the lock was broken, the cart was in the nurse's station and observable by nurses on duty; Stains on the walls were fully explained as the result of roof leaks which had recently been repaired and Petitioner was simply waiting for a good rain to insure the leak was fixed before repainting; There was no dust or soap residue on chair lifts, but rather a small amount of powder used on patients was identified by the surveyors; In-service training was promptly given to all aides about washing their hands after treating each patient; An unidentified cart noticed in the new linen room was simply the cart used to carry new linen to the laundry for washing before use; An unidentified, undated bottle of liquid on the medication cart was apple juice given to patients to assist them in taking their medication; The door to the janitor's closet was not left open, but rather the door had been closed but the lock had not engaged; In service training was promptly given to aides concerning leaving unattended bottles of germicide and cups of liquid soap in patients' bathrooms. In his memo dated March 14, 1985, Robert W. Smith recommended that Petitioner be given a "superior" rating for the time in question. Smith supervised nursing home surveyors including Farrar and Monaghan. Robert Maryanski was Smith's superior and had the final authority on rating decisions. Yvonne Opfell, Vice Chairperson of the Long-Term Care Ombudsman Council, testified that one-fourth of all complaints in the Orlando area the Council received in 1984 involved Petitioner's facility. The Council investigates every complaint received and found most complaints against Petitioner to be "not substantiated." However, several were found to be "substantiated" including one which was substantiated by Adult Protective Services involving an incident in August, 1984 in which a patient was allegedly dropped and suffered a broken arm. Henry McLaulin investigated this incident for Adult Protective Services and testified that Petitioner was less than cooperative with him in this investigation. However, based on the evidence received, including the testimony of Uhrig and Karen Skadering, a physical therapist who worked with this patient in August, 1984, it has not been proven that aides dropped the patient causing a broken arm. The patient was very weak and dependent, with brittle bones, and according to David Parsons, M.D., a patient in this condition could break a bone simply by turning over in bed through no fault of Petitioner's staff. As District Administrator of Respondent, Paul Snead, Jr. expressed his concerns about Petitioner's rating in a memo dated November 26, 1984. Snead testified at the hearing about these concerns and his feeling that Petitioner-should not be given a "superior" rating. He also admitted he has never visited Petitioner's facility. In addition to the incident in August, 1984 involving a patient's broken bone discussed above in Finding of Fact 9, Snead reported complaints about scabies at Petitioner's facility during 1984. Based upon the testimony of Charlotte Uhrig, Petitioner's Administrator, Bob Duncan, a pharmacist, Ruth E. Laughlin, senior community health nurse, and David Parsons, M.D., it is found that scabies did exist on several occasions during 1984 at Petitioner's facility. However, scabies is frequently found in nursing homes, even those rated "superior". It is a highly communicable parasitic condition which can be introduced into a nursing home by patients, family and staff. When the condition was diagnosed, Petitioner took action to eradicate the problem, but due to the lengthy three to six week incubation period and highly contagious nature of this condition, it did take repeated efforts to remove it from the nursing home. Petitioner's efforts were successful, and there is no evidence that the condition continued to exist after November, 1984.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order granting Petitioner a "superior" rating for the period November 30, 1984 to February 28, 1986. DONE and ENTERED this 14th day of April, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1986. COPIES FURNISHED: Karen Goldsmith, Esquire Jonathan S. Grout, Esquire Suite 500, Day Building 605 East Robinson Street Orlando, Florida 32802 Douglas Whitney, Esquire 400 West Robinson Street Suite 912 Orlando, Florida 32801 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in part in Findings of Fact 4, 5. Adopted in part in Findings of Fact 5, 7. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 5, 9, 10, 11. Adopted in part in Findings of Fact 5, 9, but otherwise rejected as irrelevant and unnecessary. Rejected as cumulative and also as a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 8. Rejected as a conclusion of law rather than a finding of fact.
The Issue By an Administrative Complaint executed May 27, 1986 and filed with the Division of Administrative Hearings on July 11, 1986, Respondent is charged, pursuant to Sections 464.018(1)(f) and/or (h) Florida Statutes (1985) with "unprofessional conduct which departs from minimal standards of acceptable and prevailing nursing practice; and/or being unable to practice nursing with reasonable skill and safety to patients by reason of use of alcohol or drugs." All charges are limited to events allegedly occurring May 6, 1985.
Findings Of Fact The Respondent is a licensed practical nurse. On May 5-6, 1986, Respondent was employed at the Orlando Health Care Center as a licensed practical nurse on the 11:00 p.m. to 7:00 a.m. shift. At that time, Jeanette Crandall, a 68 year-old female patient roomed with Lorene Johnson, another elderly female patient who has a history of "wandering." Mrs. Crandall testified that early on the morning of May 6, 1986 she observed Respondent alone attempt to place Lorene Johnson in bed and that when Respondent could not get Lorene Johnson into bed due to Johnson's resistance, Respondent struck Johnson with Johnson's shoe two or three times in her head resulting in a one and a half inch laceration causing Johnson to bleed. Although Ms. Crandall's testimony is somewhat disjointed as to precise time sequence, it is credible. In making the foregoing finding, the testimony of Linda Oram, nurse's aid, has not been overlooked. Ms. Oram testified upon behalf of the Respondent that when she first saw Lorene Johnson, witness Oram was with Respondent near the nurse's station and that patient Johnson came out of her room and was already bleeding. Ms. Oram stated she did not see how Ms. Johnson received her injuries nor did she see Respondent batter Ms. Johnson. Ms. Oram helped Respondent put Johnson back to bed but did not relate that Johnson had her shoes in her hand or that she resisted Oram and Respondent. Ms. Gram carefully explained that she was not present with Respondent all the time prior to putting Johnson back to bed and all the time afterwards. This evidence of Ms. Gram is not contradictory of Ms. Crandall's testimony. Moreover, there is the testimony of patient Lucille Diel that she subsequently heard Respondent telling Ms. Johnson "I didn't mean it," and the testimony of Pam Warner that Respondent told Warner that Lorene Johnson "just kept hitting me and hitting me. She was trying to kill me." Both Oram and Respondent confirm that Respondent applied a band-aid to Johnson's head injury when the two entered the room together despite profuse bleeding. Respondent's witness Oram is a recovering alcoholic and friend of Respondent who is also a recovering alcoholic. Her initial impression of Respondent's behavior was that Respondent was intoxicated and she stated this impression to a number of other witnesses on May 6, 1986. Her testimony at formal hearing did not contradict this initial impression but was expanded to include her belief that Respondent might also have been distressed on May 6 due a fight with Respondent's boyfriend. Oram felt Respondent was not in a condition to work. Jeanette Crandall was familiar with intoxicated people and testified that Respondent was drunk when she hit Johnson. Linda Ciekot, the licensed practical nurse who came on to relieve Respondent at 6:50 a.m. for the beginning of the 7:00 a.m. May 6, 1986 shift found Respondent with her head down on the desk, sweating profusely and responding to questions with slurred speech. She observed Respondent at that time to have glassy eyes, a staggering gait and to smell of alcohol. Ciekot formed the impression Respondent was very intoxicated. At this time several witnesses observed that the medicine cart and medicine Room in Respondent's charge were both unlocked and the cart was messy with doors turned out, all contrary to standard requirements. Respondent acknowledged that she frequently leaves the medicine cart unlocked and is reprimanded by her superiors for it. Pam Warner, a licensed practical nurse was summoned by Ciekot to attend patient Johnson. By that time, Johnson was in the atrium near the nurse's station and still bleeding from her wound. Pam Warner observed that Respondent had slurred speech and was loud and disheveled; she observed no alcohol odor on Respondent in the atrium. Arlene McClellan, a registered nurse coming on the new shift as charge nurse on Respondent's wing, described Respondent at this time as having glassy eyes, a wandering gaze, slurred speech and talking loudly. McClellan smelled alcohol on Respondent's person when she spoke with her privately in the small closed medicine room. These observations by persons familiar with the appearance and behavior of intoxicated persons are consistent with Respondent's being under the influence of alcohol while on duty and it is found that she was under the influence of alcohol while on duty. In making the immediately foregoing finding, Respondent's testimony has not been overlooked. She testified that her distraught condition was due to a violent fight she had had with her boyfriend just before coming to work at 11:00 p.m. May 5 and because of his telephoned threats against herself and her dog during the shift. Respondent maintained she was staggering due to skinned knees incurred May 5 when the boyfriend had dragged her across a parking lot. Her evidence of skinned knees and a series of phone calls and emotional upsets through the shift are corroborated by the observations of Leslie Martinez, another licensed practical nurse who saw Respondent approximately every two hours through the shift up until 4:00 a.m. However, Martinez stated that Respondent seemed herself until 4:00 a.m. when Martinez observed Respondent with a Betadine-stained uniform, messy nurse's station, unlocked medicine cart and medicine room, and slurred speech. Martinez' description is similar to that of other witnesses at approximately 6:30 a.m. It strains credulity to accept Respondent's version that so many medical personalities who are experienced with intoxicated persons could have confused the odors of imbibed apple juice and spilled Betadine (an iodine-based solution) with the odor of imbibed alcohol or confused the symptoms of acute emotional distress with the symptoms of being under the influence of alcohol. Her explanation is rejected. Despite elaborate speculation by Arlene McClellan based on uncorroborated hearsay, Petitioner did not establish by any competent direct evidence that any drugs were missing from the medicine cart or room or that any were ingested by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Respondent be suspended for a period of three years with leave to reapply after one year upon a showing to the Board of Nursing that her alcoholism is under control, that she is rehabilitated, and that she is fit to practice nursing. DONE and Ordered this 26th day of January, 1987 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1987. APPENDIX TO RECOMMENDED ORDER Rulings pursuant to Section 120.59(2) F.S. upon Petitioner's proposed findings of fact (FOF): Accepted FOF 1. Accepted FOF 2. Accepted but not adopted as subordinate and unnecessary. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 3. Accepted FOF 3. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 5. Those portions supported by the record as a whole are accepted in FOF What is rejected is rejected as speculative, without predicate, and as not supported by the record as a whole. Accepted as FOF 5. Accepted that Respondent testified to this but rejected as a finding of fact as not supported by the record as a whole. Rejected as irrelevant what anyone observed concerning Respondent 10 hours after the incident at a time when she was off duty. Accepted but irrelevant for the reasons stated above. Accepted but irrelevant for the reasons stated above. Accepted FOF 5. Accepted FOF 5. Accepted FOF 5. Accepted FOF 3. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's proposed findings of fact (FOF): 1. Respondent has presented no additional argument as to why Petitioner should not have been permitted to reopen its case to present evidence of licensure. The reopening of the Petitioner's case was permitted upon authority of Dees v. State 357 So.2d 491 and Jones v. State 392 So 2d 18. Since Respondent has not availed herself of further argument on that issue in her post hearing proposals, that ruling on the record is reiterated here and the record therefore contains evidence to support licensure of Respondent by Petitioner. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's alternative proposed findings of fact (FOF): Accepted FOF 1. Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Rejected as not supported by the record. Rejected as not supported by the record. Mrs. Crandall is unclear about whether Mrs. Oram was present or came in later from behind her. Mrs. Oram was not with Respondent at all times prior to going into the room with her. It would appear Ms. Johnson wandered on several occasions that night and Mrs. Crandall is clear Mrs. Oram was not assisting Respondent when the blow was struck. Accepted FOF 3. Accepted FOF 3. Accepted FOF 3. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected. Observation of Petitioner's Exhibits 1 and 2 suggests this type of injury is consistent with the sandal used. Rejected as not supported by the record as a whole. Accepted but not adopted as not determinative of any issue at bar. (See FOF 5) Accepted FOF 6. COPIES FURNISHED: John Namey, Esquire 22 East Pine Street Orlando, Florida 32801 Francisco Colon, Jr., Esquire 1 North Orange Avenue Suite 500 Orlando, Florida 32801
